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Brexit and the British constitution: it doesn't work

If Parliament is sovereign and wants to vote, it votes. If someone else (the government) is in a position to “give” it the right to vote, it is not sovereign.

Stein Ringen
13 December 2018
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Chairman of the 1922 Committee announcing Theresa May's survival of attempt by Tory MPs to oust her with a motion of no confidence at the Houses of Parliament, December 12, 2018. Stefan Rousseau/ Press Association. All rights reserved.

Among other things, Brexit is a constitutional crisis. No one in their right mind could wish for what has befallen the British people, yet their constitution did not award them protection. With chaos a reality, nor is the constitution able to rescue the British from misfortune. Damage has been caused to the polity and economy, and to the nation’s standing in the world, that it will take years and years to repair.

Brexit is supposed to be about Parliament’s sovereignty.  Yet, what it has revealed is that Parliament is not sovereign. It took a court case to decide what should have been 100% obvious, that if the country is to embark on fundamental constitutional change, that must be by a decision of Parliament. Through the process, it has been a never-ending battle for Parliament to have any role of decision-making, except to ratify what the government presents to it, if that. The language is astonishing: it is being argued over when and how Parliament will “be given” a right to vote. If Parliament is sovereign and wants to vote, it votes. If someone else (the government) is in a position to “give” it the right to vote, it is not sovereign. Through the process, it has been a never-ending battle for Parliament to have any role of decision-making, except to ratify what the government presents to it, if that.

The Parliament that is supposed to be sovereign, does not have the instruments to act accordingly. In a sovereign Parliament, it is for that Parliament to decide how to deal with matters put to it by the government. But Britain’s Parliament is not in charge of its own agenda. A sovereign Parliament can make such amendments as it wants to what the government proposes, but in Britain’s Parliament the procedures are so Byzantine that no one knows what and how the lawmakers can modify what the government proposes.

Brexit has shown that the British constitution is itself without protection. It should not be possible for major constitutional change to be put in motion on the whim of a prime minister, yet just that happened. When, well into the process, the next prime minister decided to call a snap election, that happened in spite of Parliament having legislated (in the Fixed-term Parliaments Act 2011) precisely against strategic snap elections. But Parliament was unable to uphold its own law. 

The reason constitutions should have protection against being abused by politicians of the day for strategic reasons, is that it is impossible to undertake major constitutional change without careful deliberation over some period of time. Most written constitutions have provisions that impose careful procedure on constitutional change. The British constitution has no such protections, whereby it has been possible for the crisis to unfold. The reason constitutions should have protection…is that it is impossible to undertake major constitutional change without careful deliberation over some period of time.

Building a reasonable consensus

The purpose of careful deliberation is to build some reasonable consensus behind proposed changes, and to stop attempts for which no reasonable consensus can be built. Brexit is a crisis of imposing major constitutional change on a population and political establishment against the absence of any semblance of consensus. Doing that is not only careless but IMPOSSIBLE, as can be seen in a process that has brought British politics to a choice between three impossibilities:

  • - Brexit with no deal, which would destroy the nation’s economy;
  •  

    - Brexit with a deal, which would demote Parliament to a rule-taker and cause the break-up of the Union;

  •  

    - No Brexit, which would disregard the result of a referendum called by Parliament itself.

Brexit is a crisis of imposing major constitutional change on a population and political establishment against the absence of any semblance of consensus.

When the dust finally settles, in whatever way, it would seem imperative to give very serious thought to improving a constitution that has so badly let its population down.

This piece was first published on Stein Ringen's blog, ThatsDemocracy on December 12, 2018.

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